Law Flashcards
RE Law draws from four places. Name them
Statutes: Provincial and Federal
Jurisprudence: Court decisions
Doctrines: Legal texts written by legal community
Customs: Unwritten Rules
6 possible ways to acquire an immovable
Purchase
Exchange
Gift
Succession
Giving in Payment
Acquisitive prescription
Case law (define and name the hierarchy to follow)
Refers to all past decisions made by courts
Highest court in country (supreme court of Canada)
Second-level courts
Trial courts
6 ways to acquire a property
Purchase
Exchange
Gift
Giving in Payment
Succession
Acquisitive Prescription
Types of succession
Legal (deceased did not leave a will and legal heirs determined by Civil Code)
Testamentary (Will designates the person(s) to whom they bequeath their property
Forms of wills
Holograph will (written entirely by testator and signed by lien, must be probated by court of law) Probated = validation of the signature and legal capacity of the person
Notarial law (signed before a notary “en minute” in the presence of a witness, does not need to be probated)
Will made in the presence of witnesses (written by testator (or 3rd party for them in front of the latter) in the presence of 2 witnesses, must be probated by court of law)
Heirs vs legatees
Heirs inherit without a will, Legatees inherit with a will
4 conditions of acquisitive prescription
Peaceful (no threat of violence toward real owner)
Continued (at least 10 years)
Unequivocal (no doubt, ambiguity or uncertainty exists regarding the possessor’s situation)
Public (must exist in the eyes of third parties, public can see possessor carry out acts of ownership and property tax account is registered in the possessor’s name)
Name the types of rent
Gross rent least (monthly amount is fixed)
Net lease (Lessee responsible for a portion of opex, base rent (fixed amount) + additional rent (for opex, maintenance, insurance, etc)
Percentage rent lease (specific to multi-tenant retail locations (malls), base rent + % of income)
3 Matrimonial Regimes
Community of property (Before July 1, 1970)
Partnership of Acquests (After July 1, 1970)
Separation as to property
3 types of protective supervision
Tutorship (partial and temporary incapacitation)
Curatorship (Total and permanent)
Adviser
Types of immovable property
By nature (by definition immobile in its natural state (soil, plants, permanent structures and constructions) or movables incorporated with an immovable that lose their individuality and ensure the utility of the immovable (doors, windows, staircases))
By attachment or joinder (Permanently physically attached movables that do not lose their individuality (TV antennas, Light fixtures, above-ground pools))
By the object to which they are attached (real rights in the immovable as well as actions to assert such rights or to obtain possession of immovables)
By determination of the law (hypothecs on present and future rents and hypothecs on indemnities paid under insurance contract covering rents)
3 ways to put mobile home on market
Mobile home + land sold by same owner (BCS/PP)
Mobile home + land leased by same owner (Residential rental form)
Mobile home sold or leased but land belongs to someone else (mobile home forms)
3 components of the right of ownership
Usus: right to use and enjoy a property
Fructus: right to collect fruits and revenue produced by property
Abusus: right to dispose of, hypothecate, sell, lease or give away property
Dismemberments of rights of ownership
Usufruct
Use
Servitudes
Emphyteusis
Superficies
Each owner has full, distinct ownership; of the buildings (superficiary) and of the soil (held by subsoil owner)
Declaration of co-ownership consists of
Act constituting co-ownership
Description of the fractions
By-laws of the immovable
How do you convert a building into a divided co-ownership?
Consult an architect to establish costs of individualization of services
Have cadastral redivision done by a land surveyor to establish private and common portions
Prepare declaration of co-ownership with a notary
If the building has had a rental unit in the last 10 years, there is a 4th step that is obtaining authorization from the Administrative Housing Tribunal
When must you use pre-contract?
If the following 3 criteria are met
Immovable, whether it is already constructed or still to be constructed, is for residential use
Seller is either the builder or developer of the immovable
Buyer is a natural person who intends to occupy it personally
Buyer vs seller choose notary
Buyer:
Buyer pays sale price in cash
If a hypothec is required to pay seller in cash, creditor may impose the choice of the notary on the borrower
Seller:
Buyer pays part of sale price in cash and takes over the existing hypothec
Buyer pays part cash and seller finances balance of sale price
Law classifies contracts according to 6 features
Adhesion (e.g. service contract with Hydro-Quebec) vs Negotiated contract (brokerage contract)
Unilateral (PP before seller’s acceptance) vs Bilateral (accepted PP)
Onerous (deed of sale) vs Gratuitous (donation)
Commutative (brokerage contract) vs Aleatory (insurance policy)
Instantaneous performance (property sale) vs Successive performance
Consumer (purchase of a washing machine)
Conditions of formation of contract
Consent
Qualities of consent (must be free and enlightened)
Defects of consent (errors, fraud, fear or lesion)
Legal capacity to contract
Prestation to be performed
What is tacit renewal?
Lessee continues to occupy for more than 10 days after expiry of lease without opposition from lessor. Renewal is then for 1 year or for term of initial lease, if it was less than a year, on the same conditions
Changes or work to the dwelling
- Notice: nature of work, start date, estimated duration, compensation, temporary evacuation of lessee (3 months before work), no evacuation (10 days before work)
- Compensation: for temporary evacuation, equal to the reasonable expenses of evacuated lessee, payable on date of evacuation
- Dispute: Housing Tribunal, lessee’s refusal to evacuate premises temporarily, suspension of work if application made by lessee
Access and visit of dwelling
Lessor may require access to unit. May not access unit in lessee’s absence unless major emergency (fire, major water leak, etc)
- Visit by a new lessee
- Upon receiving notice of non-renewal
- Permission to display signs that the unit is for rent
- Visits between 9am and 9pm in the presence of the lessor and the lessee
- Visit by a potential buyer
- 24h prior notice required
- Visits in the presence of lessor and lessee
- Verification of state of dwelling
- 24h prior notice required
- Visits in the presence of lessor and lessee
- Minor work to be done in the dwelling
- 24h prior notice
- Work between 7am and 7pm
Reasons to repossess immovable
Lessor must be a natural person and the sole owner of the immovable, or the undivided co-owner of the immovable with their spouse to whom they are married or in a civil union
For personal use
For use by a parent or a child
For use by a parent or a relative, for whom the lessor is the main support
For use by the spouse, for whom the lessor is the main support, following a separation, divorce or dissolution of a civil union
Reasons for eviction
Dividing the dwelling
Substantially enlarging the dwelling
Changing the destination of the dwelling
70yo no repossession rule
May not repossess or evict if: Lessee or lessee’s spouse is 70yo or older, has occupied the dwelling for at least 1 year, and has income equal to or less than that qualifying lessee or spouse for a dwelling in low-rental housing
- This exception is subject to one exception
- If lessor is 70 or older and wishes to repossess the dwelling as a domicile for themselves, if the beneficiary of the repossession is 70 or older, or if the lessor is an owner-occupant 70 or older and wishes to have a beneficiary less than 70 yo reside in same immovable as themselves
Reasons for resiliating a lease
Lessor’s request
- Payment of rent delayed by more than three weeks - Frequent delay in payment of rent causing serious injury to the lessor - Dwelling becomes unfit for habitation
Lessee’s request
- Dwelling becomes unfit for habitation - Allocation of low-rent housing - Inability to occupy a dwelling due to a disability - Senior admitted to a long-term care facility - Safety of the lessee or a child is at risk due to violence of a spouse, former spouse or third person
Only two cases allow resiliation of lease without Tribunal’s intervention
- Lessee abandons dwelling without any reason and takes their movable effects with them - Lessee, without notifying lessor, abandons dwelling because it is unfit for habitation
Suretyship (or personal guarantee)
Guarantee that may be required by a creditor to further guarantee the performance of an obligation
Benefit of discussion makes it possible for the surety to compel the creditor to consider the debtor’s property before demanding payment from them
Benefit of division allows surety to ask the creditor to divide their remedy between the sureties, when several persons have provided sureties for the same debtor in respect of the same debt
Both these benefits can be waived
Order of priorities for prior claims
Legal fees
Outstanding seller’s claim
Retainer’s claim
State claims
Property taxes
- Since they have a prior claims ranking attached to immovable, they remain with the immovable, regardless of owner
Cultural Heritage Act
Serves to protect all forms of cultural heritage
Government agencies: Conseil du Patrimoine Culturel du Quebec (consultative agency, provide recommendations to the Ministre de la Culture et des Communications) and Ministre de la Culture et des Communications is the official designated to apply the law
Legal status of heritage assets: Classification (When an immovable is classified, Minister’s authorization must be sought to make certain modifications, such as restoring, demolishing and transporting) and Heritage immovable (Once building recognized, owner has to submit a request for authorization to carry out certain modifications)
System of orders put in place to allow minister and municipalities to prevent a greater threat tot he property
Environment quality act
Seller responsible for decontamination if a contaminant has escaped or has been buried there (ESA Study PP condition if unsure)
Protection policy for lakeshores, riverbanks, littoral zones and floodplains
Aeronautics Act
Federal airport zoning regulations impose restrictions on height of structures, height of trees, breeding of certain birds and use of equipment employing radio frequencies
Act respecting the preservation of agricultural land and agricultural activities
Law states that part of QC’s territory is an agricultural zone (green zone). Rest of territory is referred to as white zone
Owner of an immovable in green zone may only use it for agricultural purposes
- Must obtain prior authorization from Commission for the protection of the Agricultural Territory of Quebec if wish to use for other purposes
Different laws regarding non-residents
Taxation Act concerning the sale of an immovable by a non-canadian resident. Capital gains tax must be paid by the buyer in the event of a default by the seller
To protect buyer, seller not resident of Canada must obtain from provincial and federal governments a certificate of compliance authorizing sale of immovable. Amount to be withheld will be indicated on the certificates
Act respecting the acquisition of farm land by non-resident
- authorization from commission de protection […] agricole
- Purchase cannot be made without authorization
- Include clause to this effect in PP
Transfer of immovables subject to welcome tax and exemptions
- Sale of immovable
- Deed of gift of an immovable
- Exchange of immovable
- Declaration of transmission in connection with the transfer of an immovable
- Sale under judicial authority
- Immovable rental whose term exceeds 40 years
- Emphyteusis and assignment of the rights of the empyteutic lessee
Exempt:
- Transfer to ascendant/descendant in the direct line, including spouse, parents, child, grandchild, etc.
- Does not apply to siblings
- Even if a situation is exempt, municipalities may still apply a supplementary right
Elements required to constitute a housing complex
(2 or more) immovables situated near one another
Immovables comprising together more than 12 dwellings
Immovables administered jointly by the same person or by related persons pursuant to the Taxation Act
Immovables that have an accessory, a dependency, or part of the structure, except a common wall, in common (pool, playground, exercise room, etc)
Sale of immovable part of a housing complex requires prior authorization of the Administrative Housing Tribunal
Cases where GST/QST apply
Sale of a new immovable
Sale of commercial or industrial immovable, new or existing
Sale of vacant plot of land if it constitutes income for its owner conducting business
Immovable that has undergone major renovations
Elements engaging a person’s liability
Fault
- Someone must be responsible for misfortune and must be able to prove
Damage
- Fault must have caused damage or harm to others (physical, moral or material)
Causal link
- What caused the damage? was damage caused as a redult of the fault?
